November 17, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
In my last post, I neglected to mention an important aspect of domestic violence the Greeley Tribune article ignored (Greeley Tribune, 11/10/16). As I said, the piece is yet another bit of off-the-shelf misandry regarding DV, of the type we so often see. But, as with so many of that ilk, the article fails to mention that, even if one cares nothing for male victims or female perpetrators, if one’s sole focus is on female victims, ignoring female perpetrators actually disserves female victims.
That’s one lesson to be drawn from the study done for the Centers for Disease Control back in 2007 that found that 70% of reciprocal violence is initiated by the woman. Since we know that women are more likely to be injured in a DV incident than are men, it seems safe to say that, if women didn’t hit first, they’d be a lot safer from male retaliation. In short, the article’s pretense that women don’t commit serious DV actually tends to ensure their greater victimization.
From there, the article takes on a legitimate issue – mandatory arrest and prosecution. Colorado is one of the few states in the nation to retain those policies that have long since been shown to be not only a blot on the concept of due process of law, but counterproductive in addressing the problem of domestic violence. The article is less deficient on that subject, but barely.
First, when discussing mandatory arrest and prosecution, the piece still can’t manage to set aside its overt sexism.
The flaws in the domestic violence laws are somewhat of a pet project for the Weld County District Attorney’s Office. It started with Rep. Ken Buck, who was the Weld DA before Rourke.
“The problem is we have a number of females arrested for very minor crimes and they were very unprosecutable cases,” Buck said. “The inefficiency in the system doesn’t make sense.”
Apparently no male was ever hauled in for a “very minor” DV offense that proved “very unprosecutable.” Amazing.
Worse, the article, which is long enough to deal effectively with the problem of mandatory arrest and prosecution, fails to do so. It expends many, many words dithering about matters that are largely extraneous, like whether police do or don’t have discretion about whether to arrest.
The short answer is that they don’t. That’s the meaning of the word “mandatory.” In Colorado, if police have probable cause to believe a person has committed DV, they’re required to arrest him/her. Of course one officer could turn a blind eye to certain evidence that to another might constitute probable cause. But that’s not legal discretion, it’s skirting the plain meaning of the law.
The major problem with mandatory arrest and prosecution laws is that they make the situation worse not better. To its credit, the article at least touches on that point.
[Karol Patch] explained that for that reason, it normally takes a long time for a victim to report abuse. They don’t want to get their significant other in trouble with the law.
“I see that there are victims who don’t report because there is this whole tremendous process that’s going to go in place and they don’t have control of their situation during that,” she said. “For some victims, they learn that they’re better if they can control the situation.”
That process, set off by the call to police, includes the mandatory arrest and the resulting charges from the district attorney as well a restraining order between the victim and the abuser, which neither can legally break.
But that’s the extent of it. In an article of about 2,700 words, the Greeley piece devotes about 115 to the nut of why mandatory arrest and prosecution is a bad idea. Not good.
Since the issue of mandatory arrest and prosecution is the topic, why not consult the study done in, 2009 by a Harvard researcher that found that about 50 more women per year are killed in DV incidents because of mandatory arrest policies?
Why? Because, as Karol Patch alludes to, when people know that, if they call the police, the other person will go to jail, have to hire a lawyer, possibly be convicted, have a DV conviction on his record that prohibits him from getting numerous jobs, have a restraining order issued against him, be unable to have contact with his kids, spend money on a new place to live along with extra utility payments, insurance payments, etc., the great majority of people conclude that it’s just not worth it.
We often hear the DV industry bemoaning the low rate of reporting DV incidents. What we never hear is that industry acknowledging that it’s their policies that discourage people from reporting.
Again turning to the information provided earlier this year by Statistics Canada, as I related in this post, the overwhelming majority of people involved in a DV incident don’t notify the police. The Canadian data show that just 19% of people experiencing DV involved the police. That’s not what we’d call a ringing endorsement of the way DV is handled. As is so often the case, everyday people are smarter than the DV industry when it comes to deciding how to handle a DV situation. The Canadians who didn’t call the police overwhelmingly said the reason was that the incident wasn’t important enough to do so.
That sounds like they compared the consequences of calling the police with the consequences of not doing so and opted for the latter. Could it be that, if the consequences of calling the police weren’t so extreme, more people would call them? That’s certainly a logical possibility, but naturally it’s not one the DV industry would consider.
But just consider: what if we treated minor DV incidents not as crimes to be prosecuted, but as aberrant behavior that need treatment? For one thing, that would bring DV practice into line with our scientific understanding of the problem. Plus, if people knew they’d get help instead of jail and a lifetime of having their name on a DV registry, they’d probably be more ready to come forward.
The simple truth is that the vast majority of DV is minor and should be treated as such. Other cases, like those involving significant injury or repeat offenders should be turned over the police and prosecutors. But people involved in minor incidents should have the opportunity to get the help they and their partners need.
It’s a concept the DV industry rejects and that the Greeley Tribune isn’t even aware of.
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